BB vs. School District of Philadelphia

Pennsylvania
Special Education Hearing Officer

DECISION

Child’s Name: B.B.

Date of Birth: [redacted]

ODR No. 18909-16-17-KE

OPEN HEARING

Parties to the Hearing: Parent[s]

Elwyn, Inc. Seeds EI Program
For School District of Philadelphia 4040 Market Street
Philadelphia, PA 19104

Representative:

Sean J. McGrath, Esquire Education Law Center
1315 Walnut Street, Suite 400 Philadelphia, PA 19107

Andrew E. Faust, Esquire
Sweet, Stevens, Katz, Williams, LLP 331 Butler Avenue, P.O. Box 5069 New Britain, PA 18901

Date of Hearing: June 27, 2017

Date of Decision: July 17, 2017

Hearing Officer: William F. Culleton, Jr., Esquire, CHO

INTRODUCTION AND PROCEDURAL HISTORY

The child named in this matter (Student)1 is a three year old eligible resident of the District named in this matter (District). Student receives early intervention services from the respondent Early Intervention program named in this matter (EI Program), pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1401 et seq. (IDEA). These services include the related service of transportation, pursuant to Student’s Individualized Education Program (IEP). Parents request due process, asserting that on multiple occasions Student’s transportation provider has provided excessively long rides to Student; failed to provide appropriate safety equipment during transport; and failed to arrive on time to Student’s program. Parents request an order requiring the EI Program to ensure appropriate transportation services.

The EI Program responds that it is not responsible to provide Student’s transportation, because the state Department of Education (DOE) explicitly refrained from delegating this responsibility to the EI Program, and provides no funding to the IE Program for purposes of providing transportation services. Instead, the District provides transportation to Student, under a provision of state law that requires either the District or the local Intermediate Unit to provide transportation to Student. The EI Program further asserts that DOE retains responsibility for deficiencies in the transportation services provided to Student, as it is the state education agency with overall responsibility for the provision of a free appropriate public education (FAPE) to Student.

Parents filed separate requests for due process, naming as respondents all three of the agencies with possible responsibility to provide transportation to Student pursuant to Student’s IEP: the EI Program, which is respondent in this matter; the District, which is respondent in ODR No. 18910; and DOE, respondent in ODR No. 18911. I consolidated these three matters for purposes of hearing and adjudication; the decision that follows encompasses and decides all three claims.

The parties agreed to submit a stipulated record, and stipulated a number of exhibits into the record. I convened a one session hearing in the form of oral argument. I have considered and weighed all of the evidence of record.2

I conclude that DOE retains responsibility to assure that Student receives transportation services consistent with the provision of a FAPE. I exercise equitable authority to order DOE to provide additional appropriate services to ensure that the deficiencies of the past are not repeated in the upcoming school year. In addition, I order the EI Program and the District to participate in an educational planning meeting with DOE, in order to ensure that Parents are provided with appropriate, complete and effective relief. G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 (3d Cir. 2015).

ISSUES

  1. What are the relative legal responsibilities of the EI Program, the District and DOE to provide Student with the related service of transportation pursuant to Student’s current IEP?
  2. Should the hearing officer order any of these parties to provide Student or Parents with transportation-related services in addition to those which they have agreed to provide?
  3. Should the hearing officer order any of these parties to provide Student with compensatory education on account of any denial of a FAPE from March 17, 2017 to date?
B-B-School-District-of-Philadelphia-ODRNo-18909-16-17-KE

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